Tired of being kept in the dark? Defendants' pre-action applications for disclosure

It can often feel like the claimant holds all the cards prior to litigation. What options are open to defendants to level the playing field?

It can often feel like the claimant holds all the cards prior to litigation. It can be a frustrating experience for defendants as it is difficult to persuade the claimant to part with any evidence voluntarily.

Why do the claimant's solicitors do this?

It is a deliberate tactic to avoid any kind of pressure whilst they investigate and look to evidence the largest claim possible, obviously acting in their client’s best interests. What’s best for the claimant is almost necessarily bad for the defendant. Unless the defendant can intervene, the claimant’s solicitor can craft a case and increase the potential value in peace without any real degree of oversight. Whilst the defendant is kept in the dark, the risk of a speculative offer biting is low. The defendant is understandably reluctant to pay too much and so any offers without evidence, tend to be conservative.

Can a defendant make an application for pre-action for disclosure?

Pre-action applications for disclosure have traditionally been the preserve of claimants as a means by which to secure liability evidence (and costs) from defendants. Perhaps this is a hangover from previous incarnations of the CPR (Civil Procedure Rules) restricting this tool to claimants. However, CPR 31.16 is neutral in its drafting; it is just as much available to defendants as claimants.

What documents can be obtained via a pre-action application for disclosure?

Essentially, the test is whether it would be useful to see anything now, that would ultimately appear in the claimant’s list of documents at the standard disclosure stage. If so, generally it can be obtained via an application for pre-action disclosure.

In an injury claim, can you obtain the claimant's medical records via an application for pre-action disclosure?

Yes. There are reported cases where the defendant has failed in an application for pre-action disclosure, but it can be done. The case law in this area is quite interesting. There are understandable Privacy and Data Protection concerns, but we have made many applications for pre-action disclosure of the claimant’s medical records and the Court has ordered disclosure in every one.

The Court understands that there is an imbalance between the parties in respect of evidence prior to litigation. If the application is pursued in the right way, the Court does support defendants seeking the claimant’s medical records. It will not, however, permit an ill-defined fishing expedition.

Does the claimant have to hold the documents that the defendant seeks?

The duty of disclosure extends to documents in the claimant’s possession but also those documents in their control. So, even where the claimant, or their solicitor, has not yet obtained the documents, they can be subject of an order for pre-action disclosure.

What are the benefits of pre-action disclosure?

If the claimant does not want to share evidence, cases tend to drift inevitably towards the expiry of limitation and litigation, with its additional legal costs. Intervening with an application for pre-action disclosure takes back control.

Securing documentary evidence allows the defendant to understand the case they are facing. This can lead to an informed offer which could conclude the matter without litigation, saving significant costs. Even if this does not happen, the issues can be narrowed and the defendant can become involved with case management earlier, again saving costs.

Importantly, it becomes easier for the defendant to influence the narrative of the claimant’s claim, rather than start from the back foot at the point of litigation.

Who pays for pre-action disclosure?

Normally the party wanting documents would be expected to pay the associated costs. However, where the claimant has refused reasonable requests for disclosure, that party should pay the costs of the application and the hearing.